I have always thought that examining teshuvot that are self-consciously dealing with new situations is a particularly effective way of understanding the process of psak. Therefore, we explored the teshuvah of Rabbi Yaakov Ettlinger that first suggested that members of non-orthodox denominations should be classified legally as tinokot shenishbu. The shiur and sources are available here.
The Binyan Tzion, in a teshuva (23) that has a preface indicating that it is not meant as practical Halacha, was asked whether non-shomrei Shabbos Jews in his day invalidated wine like classic Shabbos violators. [The Minchas Elazar assumes the printer put this preface in – I’m not sure why he thinks that.] At first, he establishes the standard Halacha and asserts that they should. However, in the middle of the teshuvah he notes that the reality he is dealing with is fundamentally different from that of Chazal. Rashi, he notes, explains that the reason that one who violates Shabbos has the status of an idol-worshipper is because he denies the creator and creation. This was true in an era where everyone understood that there was basically only one way to be a Jew – keeping Halacha. Obviously some people were derelict or even rebellious, but there was not alternate model. Thus, violating Shabbos meant that you rejected the system and what it represented. However, in Germany in the nineteenth century, there was another vision. The Reform Movement had begun. Thus, he was facing a situation where a group of people did not keep Shabbos formally but still showed that they understood the value of Shabbos – they went to shul, they made Kiddush, etc. As psak is equally about theory as it is about understanding the reality to which is applies, this observation is the first significant move that he makes. The next move is to figure out whether this change in sociological reality has legal significance. Here, he has to decide whether the status of mechalel Shabbos was formal or substantive. He decides on the latter, which allows him to argue that because the reasoning of Rashi doesn’t apply, Reform Jews, at least second generation ones who did not actively reject Halacha, should not have the status of a classic mechalel Shabbos. Next, he does what most good poskim would do when the expected model falls apart – search for a different precedent. Here, he adopts the Rambam’s model for dealing with Karaites – they are Tinokot Shenishbu – people captured as children and therefore not responsible for lack of commitment to Halacha.
This model was quickly accepted in Germany, and across the world, as is evident from Rabbi Dovid Tzvi Hoffman who records how this began to become the accepted position in shuls in Germany, and from what he had heard, in America as well. By time you get to Rabbi Moshe Feinstein, there is no question for him (he applies this in many circumstances, such as counting for a minyan or being called up for an Aliyah). Rabbi Dovid Tzvi Hoffman also explains why one would want to accept this position – because it allows us to bring Jews closer rather than drive them away. Rabbi Feinstein notes, however, that it might not help when someone who does not believe wants to make a bracha that asserts that God gave the Torah to the Jewish people. Even if we apply the model, we must always think about what categories this model is helpful for.
These teshuvot highlight many things we spoke about earlier in the year – the importance of understanding the reality (and how it changes), the role of precedent, the ability of poskim to determine whether laws are formal or substantive, the extra-legal factors that push poskim to accept certain positions, etc.
On the flip side, the Minchas Elazar (74), who Rabbi Ovadiah Yosef takes as the paradigmatic critic of this position, argues both on the law and the motivations. First, he argues that the status of mechalel Shabbos is formal, so the Binyan Tzion’s arguments are irrelevant. Second, he argues that we want to drive them away so that others are not influenced by them. Third, he argues that in reality, non-religious Jews are not like the Karaites of the Rambam, as they have been exposed to Orthodox Jews. Here, R. Ovadiah notes correctly that this is untrue – the Karaites were as close to the community if not more than our non-Orthodox Jews (the Cairo Geniza has provided ample evidence of this).
Again, here we see the importance of determining the reality (past and present), determining the nature of the law, and the effect of extra-legal factors – though all of these lead the Minchas Elazar to the opposite conclusion.
After reading these teshuvot, we noted that this is far from a closed issue. First, some have been bothered by the implication of this argument, as it implies that people cannot be expected to break away from the way they were raised. This minimizes the decisions made by both orthodox and non-orthodox people. Rabbi Dov Linzer therefore prefers using a broad understanding of omer mutar – in a secular world, people cannot really be expected to say that Halacha is binding. Rabbi Yoel Bin Nun argues that we must create a category (based on a pshat comment by Ramban) of kehal shogegin – a entire community who views the world different and therefore gets a unique status of shogeg – accidental sinners. One must wonder whether these categories will help for people who grew up orthodox and left. Rabbi Avraham Yitzchak Kook, by arguing that the secular spirit is so pervasive no one can be blamed for being secular, and the Chazon Ish, by claiming that we cannot have the status of kofer (heretic)with all its legal implications when there are no open miracles, open up legal room to define even those who leave orthodoxy more leniently. On the other hand, others have argued that we have such an educated society, especially in Israel, that we really have to reconsider the designation lichumra. Thus, this issue is a good way of seeing the dynamism of the Halachic system and the creativity needed to apply it to difficult changing circumstances.